Overview of Defamation

The Constitution of India provides several fundamental rights to people in India under Part III. One of such fundamental rights is freedom of speech and expression. It has been granted to every citizen in India under Article 19(1) of the Indian Constitution. The Article provides a right to free speech and freedom to express opinions to other people through various means.

Every fundamental right comes with certain restrictions or exceptions to put a limit to the use of every right provided to people. These restrictions have been mentioned under Article 19(2) of the Constitution. Restrictions stop people from making any comments or passing opinions on matters which are defamatory or are of national importance and can be detrimental. To protect the good reputation of people from being damaged, the legislative body has enacted laws related to defamation to punish the wrongdoer either by sentencing the accused or by making the accused pay a necessary amount of money as compensation for the damage caused.

What do you mean by Defamation?

Defamation in India can be a civil or criminal wrong. It is an act which causes damage to the good and established reputation of another person by making malicious and false information about another person. A person aggrieved by the defamatory act of a person can file a civil suit seeking compensation for the loss or can file a criminal complaint to prosecute the offender for such acts. It involves the publication of information about a person which is false and is published without the consent of such a person. It is essential to know that causing mere harm to a person’s feelings does not amount to defamation. For defamation, there must be damage to the reputation of the person after the false statements have been made.

Types of Defamation

Defamation can be of two types in general. These are:

• Libel- Whenever a person defames the other by way of putting the remarks in a permanent form such as by writing, printing in the daily newspaper, publishing defamatory photographs at public places, etc, it is called Libel.
• Slander- Whenever a person defames the other by gestures or spoken words, it is called slander. Slander also includes sign language and other forms of expressions such as winking or booing to harm the reputation.

Essentials of Defamation

There are 3 essential elements to constitute a wrong as defamation. These are as follows:

(i) Imputation how made – An imputation must be made or communicated to a third party other than the person against whom such statement has been made. It is the essential element defined under Section 499 of the Indian Penal Code. Such an imputation can be made by:

(a) spoken or written words; or

(b) by making gestures; or

(c) visible bodily actions or representations.

(ii) Imputation must be related to a specific person or persons – The imputation must be directly related to a specific person or group of people which can be easily identified in the statements made.

An undignified statement made against a company, or an association will also amount to defamation.

(iii) Intent to harm – The statements passed must be made with a malicious intention to harm or having reason to believe that making such comments will harm the reputation of a person. To consider an act defamatory, the person making it already knows or has a reason to believe that such imputation will definitely affect the reputation of a person negatively. Therefore, the presence of a guilty mind is a must in cases of defamation.

It is not essential in cases of defamation that the aggrieved actually suffers any harm to the reputation after the imputation has been made.

Defamation in India

In India, defamation is a wrong act considered as an offence under both, civil and criminal law. Under civil law, an act of defamation is punishable under the law of torts by way of imposition of punishment in the form of payment of damages to the aggrieved. Under criminal law, an act of defamation is considered a compoundable, non-cognizable and non-bailable offence.

For arresting a person accused of defamation, the police officer mandatorily needs to have an arrest warrant that has been issued by the magistrate.

Civil Defamation

The statement passed must be false and be made without the consent of the person who has been defamed. Under a civil suit, a person can claim monetary compensation from the defamation for the loss of reputation due to defamation. The aggrieved person needs to keep in mind certain things to win the defamation suit. These are:

• It is mandatory that there is a presence of a statement having a defamatory character. A statement is said to be defamatory if it has caused injury or damage to the reputation of a person causing him/her loss. The factor which needs to be considered while deciding that there has been damage to the reputation of a person and its amount is by considering it from the eyes of the common man and his opinion related to the matter.
• The statement which has been made must be purported to a person or a group of individuals. Any general statement passed which is not directed to a specific person is not considered defamatory and no compensation can be claimed by people who take those statements to be defamatory.
• The remarks must be made orally or in written form. It needs to be informed to a third party, then only it is said to be defamation. If a person has made defamatory statements during a private conversation between two parties, then it is not considered defamatory. When a person sends a letter to the other party in the language known to such receiver, it is mandatory for a third person to read the letter in case of making it a wrong of defamation.

Thus, whenever a person sends a letter or message to another, it is mandatory for a third party to read such a letter in order to constitute the offence of defamation.

If a remark has satisfied all the above-stated conditions, the offence of defamation is said to be committed.

There are certain defences available to a defendant that he/she can use to plead:

• The remark related to a person has to be published and true,
• The comment must be made in the public interest based on true events,
• The statements made by parties which are considered to be a part of privileged communications are not considered defamatory.

Criminal Defamation

Whenever a person files a criminal defamation case, the punishment is simple imprisonment if the defendant is convicted. The main element to file a criminal complaint is the intention to defame a person. The statements must be passed with malicious intentions to defame a person. It is the responsibility of the victim to prove that the act of the opposite party has lowered the reputation of him/her beyond any reasonable doubt.

What are your defences if a defamation charge is imposed on a person?

There are several available defences that an opposite party can use to protect himself/herself from being convicted. These are as follows:

 Justification by truth

The basic ingredient constituting the wrong of defamation is the making of false statements against another person. Whenever a person makes a statement for another which is true in nature, it cannot be termed defamation. A remark or statement made is not considered defamatory till the statements indicate the truth.

Fair Comment

If anyone passes a fair comment with good intentions, it can be used as a defence against defamation. Such a comment is made with bonafide intentions and in good faith. The statement which has been passed must be treated as a personal opinion and not a statement which asserts facts.

Privilege

Certain privileges are provided to people so that they can communicate effectively without any restrictions on freedom of speech and expression. Such privileges are provided in special circumstances only where parties are required to share their opinion freely. It has been divided into two types:

Absolute Privilege

Such privilege is provided to a person who has the freedom to make false and malicious statements without any restrictions. Such a privilege is provided to people during state communications, court and parliamentary proceedings.

Qualified Privilege

A qualified privilege is provided to a person who is legally or morally bound to make a comment which can be defamatory. The statements passed must be made without any malicious intentions.

How to file a Defamation case?

In India, a person can file a civil suit or criminal complaint for the wrong of defamation. One should always consult a lawyer to decide which type of case should be filed depending upon the facts and circumstances of each and every case. There is a general procedure to be followed while filing a defamation case before the competent court. It is as follows:

The very first step is to serve a legal notice. Legal notice for defamation is a formal communication sent by the person who has been aggrieved to the person who has been accused of committing defamation. The notice mentions all the facts and circumstances under which the act of defamation was performed by the accused. At the end of the notice, the aggrieved party mentions certain demands that are required to be fulfilled by the accused. If the accused does not comply with the demands mentioned in the notice, the aggrieved person can approach the court to seek justice and file a complaint against the accused.

If it has been found that the accused does not comply with the demands asked for by the aggrieved in the legal notice, he/she has the right to file a complaint before a civil court or criminal court or in both courts. The aggrieved person needs to approach the civil court having competent jurisdiction as per Order 7 Rule 1 of the Civil Procedure Code if he/she wishes to file a civil suit. In case the person wishes to file a criminal complaint against the accused, he/she can file a case under Sections 499 and 500 of the Indian Penal Code. The appointed lawyer will submit a criminal complaint under Section 200 of the Code of Criminal Procedure.

After the court accepts the complaint, the court hears the aggrieved party and decides whether there is an actual case of defamation or not. If the court thinks that there are merits in the case, the court will serve a notice to the accused to be present before the court on a future date for the submission of arguments. Once the suit/complaint is filed, the court serves summon/notice all the time.

At the stage of discovery, both parties are required to exchange the relevant Documents and replies to the plaint and written statements filed before the court. Through this, the parties will get to know the points of strength and weaknesses of each other.

After discovery, the parties are required to present their witnesses if any for examination, cross examination or interview purposes.

After both parties along with the witnesses have been heard and Documents have been verified, the party to the case is required to make final arguments.

After the court has considered every relevant Document and the opportunity of being heard has been given to both parties, the court passes a judgement as per the prevailing laws in India. The court can either acquit the accused or order the accused to pay damages, compensation, sentence, etc. 

Remedy and punishment for defamation

As a person can approach both civil and criminal courts for filing a case for defamation, there are certain remedies available to the aggrieved party under the prevailing civil and criminal laws in India.

If the person files a civil suit, then remedy is granted to him/her under the Law of Tort and the aggrieved person needs to file such a suit before the competent district or high court to claim monetary compensation for the damage that has been caused to the reputation of the aggrieved after passing of the defamatory sentence.

Under criminal law, the types of defamation, namely libel and slander fall under the category of criminal offences in India and are punishable under Sections 499 and 500 of the Indian Penal Code.

The punishment in criminal defamation cases is mentioned in the Indian Penal Code as imprisonment for upto 2 years or a fine or both. The offence of defamation is non-cognizable, bailable and compoundable in nature.